Martin v. Pan American World Airways, Inc., Civ. A. No. 82-2066.

• Decision Date: 24 May 1983
• Docket Number: Civ. A. No. 82-2066.
• Parties: Ivonne MARTIN, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.
• Court: U.S. District Court — District of Columbia

563 F. Supp. 135

Ivonne MARTIN, Plaintiff, v. PAN AMERICAN WORLD AIRWAYS, INC., Defendant.

Civ. A. No. 82-2066.

United States District Court, District of Columbia.

April 26, 1983.

As Amended May 24, 1983.

Irving Starr, Arlington, Va., for plaintiff.

George U. Carneal, Patricia A. Brannan, Washington, D.C., for defendant.

MEMORANDUM

FLANNERY, District Judge.

This matter comes before the court on the motion of the defendant, Pan American World Airways, Inc. ("Pan Am") for summary judgment. Pan Am argues that plaintiff's action to recover damages for the value of luggage and its contents lost while plaintiff was traveling on a Pan Am flight from Miami, Florida to Buenos Aires, Argentina cannot be maintained for two reasons. First, Pan Am argues that it has already paid the full amount for which it is liable pursuant to the provisions of the Warsaw Convention and applicable Civil Aeronautics Board tariffs. Second, Pan Am argues that plaintiff's subrogee negotiated a full settlement of plaintiff's claim with Pan Am and subsequently endorsed and deposited a check from Pan Am, thereby releasing Pan Am from further liability. For the reasons set forth below, defendant's motion for summary judgment is granted.

Facts

On December 20, 1980, plaintiff, Ivonne Martin, embarked on a flight from Washington, D.C. to Buenos Aires, Argentina. Plaintiff's travel originated in Washington, D.C. on flight number 355 to Miami, Florida. In Washington, plaintiff checked three pieces of baggage to Miami. In Miami, plaintiff picked up her luggage, to ensure that it would be rechecked through to Buenos Aires. She subsequently presented her baggage at the Pan Am desk of Miami Airport, to be checked aboard her international flight to Buenos Aires.

Pan Am's baggage handler received her bags, and issued claims checks to Martin. The baggage handler then tagged the bags. However, he placed one baggage tag on one bag, two tags on a second bag, and no tag on Martin's third bag. In addition, he neglected to record the weight of the bags on plaintiff's baggage claim.¹

Plaintiff states that she noticed that the baggage handler had failed to tag her third bag, and brought this to his attention. She states further that he replied that he had tagged the bag, and permitted it to disappear up the conveyor belt without checking into it further.

Martin did not declare or pay for excess valuation on the personal property contained in her luggage, nor did she request that her luggage receive special handling because of its value. In addition, plaintiff's ticket set forth the conditions of carriage of the Warsaw Convention, including the limited liability provisions of the Convention.

When plaintiff arrived in Buenos Aires, Argentina, she discovered that one piece of luggage was missing. She alleges that the luggage contained clothes, perfume, and jewelry worth approximately $16,000.² Plaintiff also claims that the luggage contained a title to property which she owns in Buenos Aires. Plaintiff seeks $50,000 in compensatory damages for the loss of the title.

The luggage has never been located by Pan Am. Plaintiff received $2,000 for the loss under the provisions of a transportation-floater insurance policy held by her employer, the Inter-American Development Bank. This policy was issued by the Insurance Company of North America, ("INA"). INA's rights to subrogation against Pan Am were then assigned to its adjuster, Recovery Services International, Inc. ("RSI"). RSI filed a claim with Pan Am seeking $2,000. Pan Am ultimately paid RSI $540, and RSI endorsed and deposited the check. Pan Am argues that the amount paid, $540, represents the full amount for which it is liable under the terms of the Warsaw Convention, and that plaintiff cannot seek further recovery.³

On July 26, 1982, Martin brought this complaint alleging breach of contract, breach of bailment, negligence, and conversion. Martin alleges that Pan Am negligently lost her baggage, and failed to tag and weigh the baggage. Martin alleges that these crucial omissions remove Pan Am from the protection of the limited liability provisions of the Warsaw Convention, and that Pan Am is liable for the full amount of the damages claimed.

Discussion

Defendant has moved for summary judgment on two separate grounds. First, Pan Am argues that it has paid to plaintiff's subrogee the full amount to which plaintiff could be entitled under the terms of the Warsaw Convention. Second, Pan Am argues that plaintiff's subrogee negotiated a full settlement of plaintiff's claim with Pan Am and subsequently endorsed and deposited a settlement check from Pan Am, thereby settling the claim and relieving Pan Am from further liability.

Because the court finds that the provisions of the Warsaw Convention limit Pan Am's liability for the loss of Martin's luggage, this court has no occasion to consider Pan Am's alternate argument.

The amount to which an airline may be liable for the loss, delay, or damage to baggage on international flights is expressly limited by the terms of the Warsaw Convention.⁴ The Convention provides:

In the transportation of checked baggage and of goods, the liability of the carrier shall be limited to the sum of 250 francs per kilogram, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires.

Article 22(2); 49 U.S.C. § 1502. The Warsaw Convention applies to the international flight at issue here, and Pan Am argues that Article 22(2) limits its liability for lost luggage to $20.00 per kilogram, or $9.07 per lb. Since Pan Am has paid the amount of its liability under the Convention, and because plaintiff did not declare excess valuation on her luggage, Pan Am argues that it has no further liability and that summary judgment is appropriate.

Plaintiff agrees that the provisions of the Warsaw Convention apply to the flight, but argues that Pan Am is not entitled to take advantage of the limited liability provisions of the Convention. Plaintiff raises three objections to Pan Am's invocation of the Convention. First, plaintiff alleges that Pan Am neglected to place a baggage tag on the missing bag and that the bag is therefore not "checked baggage" within the meaning of Article 22(2). Second, plaintiff argues that Pan Am's failure to record the weight of the bags as required by Article 4(3)(f) of the Convention denies Pan Am the benefit of the limited liability provisions of the Convention. Finally, plaintiff alleges that the ticket agent ignored her request to ticket her third bag despite her request that he do so. Plaintiff alleges that this action constitutes wilful misconduct within the meaning of Article 25 of the Convention, and therefore removes Pan Am's entitlement to limit its liability for lost baggage.

A. Checked Baggage

When plaintiff presented her baggage at Miami Airport to be checked aboard her flight, Pan Am's baggage handler attached one baggage tag to one of plaintiff's suitcases, and two tags to another. However, he failed to attach a tag to the third, and subsequently missing, bag. Plaintiff stated that this "act of negligence operates to remove Plaintiff's claim from the dictates of the Warsaw Convention." Plaintiff's Mem. at 1. The court does not agree that Pan Am's failure to attach a baggage tag to the suitcase negates the application of the Convention.

Pan Am did deliver a baggage claim to the plaintiff and accepted her luggage. Article 18 of the Warsaw Convention provides in pertinent part:

(1) The carrier shall be liable for damages sustained in the event of the destruction or loss of, or of damages to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.

The court finds that the baggage, received by the airline and for which a baggage check has been issued, constitutes "checked baggage" subject to the Warsaw Convention, despite the airline's failure to fasten a tag to the piece of baggage. If a check has been issued to the passenger, the airline has accepted the luggage. The check is the means of checking, or regulating something. In this case, it is baggage. The baggage tag itself helps to identify the baggage, and to alert the handlers of the destination and flight. But its affixation is not required to "check" the baggage. Checking clearly occurs when Pan Am takes possession of the defendant's baggage and issues a receipt. When the luggage is taken from Martin, and she can retrieve it only when she arrives at her destination, the airline's rights and obligations for the baggage attach. The fact that a tag is not attached does not make the baggage "un checked" nor does it affect the airline's duties under the Convention.

This reading of the Convention is reinforced by the language of Article 4(4). That article provides, "for the transportation of baggage ... the carrier must deliver a baggage check." The Article does not require that each bag be tagged to be checked or registered baggage within the Convention. Whether or not a tag is affixed to a particular bag, the luggage has been processed, or "checked" when a baggage check is delivered. Plaintiff's argument is, therefore, rejected.

B. Weight of the Luggage

Plaintiff argues, in the alternative, that defendant has removed itself from the limited liability conferred by the Convention by failing to weigh her luggage. The Warsaw Convention provides that a baggage claim must contain "the number and weight of the packages." Article 4(3)(f). Article 4(4) states that a carrier that accepts luggage that does not contain the particulars set forth in that Article "shall not be entitled to avail himself of those provisions of the convention which exclude or limit his liability."

Several courts have applied the language of the Convention under facts analogous to those at issue here and have...